Trump’s “Travel Ban” Tweets Show His Disdain for His Lawyers

In a series of early-morning tweets after the recent London Bridge attack, Trump once again touted his proposed travel ban, which has repeatedly been struck down in the lower courts.

PHOTOGRAPH BY NOAM GALAI / WIREIMAGE / GETTY

As President Trump was about to sign an executive order on January 27th, he held it up and read its title aloud. “This is the ‘Protection of the Nation from Foreign Terrorist Entry Into the United States,’ ” he said. “We all know what that means.” What that means—to Trump, to the judges who have heard challenges to the order and to a revised version, and to the future of civil rights—is an issue that the Supreme Court is now being asked to decide. The question is whether the current order, which would temporarily keep people from six predominantly Muslim countries and all refugees out of the country, is a realization of the unconstitutional “Muslim ban” that Trump called for during the campaign, or whether it is something entirely independent: a prudent, religiously neutral immigration measure taken in response to national-security concerns. After the weekend’s terrorist attacks on London Bridge, Trump provided some ugly answers to that question in a series of tweets.

It started on Saturday night, just after 7 P.M. “We need to be smart, vigilant and tough. We need the courts to give us back our rights. We need the Travel Ban as an extra level of safety!” By “our rights,” Trump apparently meant the right that he presumed to have, as President, not to listen to the courts. He added, on Sunday night, “We must stop being politically correct and get down to the business of security for our people. If we don’t get smart it will only get worse.” But it was in four Monday-morning tweets, the first issued at 6:25 A.M., that Trump jammed himself directly into the legal arguments surrounding the ban. He wrote, “People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!”

Sean Spicer, Trump’s spokesman, has criticized reporters for calling the executive order a travel ban. More importantly, though, the Administration’s lawyers have made the opposite argument regarding which language matters. They have argued, before appeals panels in both the Fourth and Ninth Circuits, that Trump can say whatever he wants when campaigning or in talk that is not “official,” but that what the ban actually is consists of nothing more that the legalisms (and euphemisms) that his lawyers come up with in drafting it. The judges, the lawyers said, should pay no attention to moments when Trump said that we as a nation had a “problem” with Islam, or that “Islam hates us” and that only people who “love” us should come into the country, or to what such comments might say about how the order would be implemented. Trump, by saying the reverse of what his legal team argues, is mocking his lawyers, believers in the language of the law, and pretty much everyone else involved. (In another, roughly simultaneous series of tweets, which my colleague John Cassidy explored, Trump conveyed his disdain for the mayor of London.)

And then, a few minutes after that first Monday tweet, Trump added another lashing of the same kind of contempt: “The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.” This raises, again, the question of what “the original Travel Ban” is in Trump’s mind. Is it the January 27th order, which was so obviously legally flawed—it failed, for example, to even consider the due-process rights of long-term permanent residents—that, after a few scathing legal losses, Administration lawyers withdrew and redrafted it? (It’s worth noting that Trump’s Monday-morning tweet, by bemoaning the loss of the first order, was complaining about the lost chance to discriminate against those green-card holders.) Or is it his call, in December of 2015, for a “complete and total shutdown” of the entry of any Muslims into the United States? That ban, Trump said at the time, should remain in place “until our country’s representatives can figure out what the hell is going on.” With Trump as our representative, that figuring-out could take an awfully long time.

By saying that the revised order was “submitted” to the Supreme Court, Trump is referring to the Justice Department’s appeal of a preliminary injunction upheld by the lower courts, on the ground that the revised ban, too, appeared to have an Establishment Clause problem. Judges in almost all courts that have heard the case seem troubled by the problem of what to do when a President lies to them about the purpose of an executive action. (This is not a new American problem; any number of laws and ordinances, dating back to Reconstruction, aimed at segregation but hid their purposes in ways that, as the courts have long recognized, judges are allowed to question and unveil.) The judges’ opinions have cited not only examples of Trump’s anti-Muslim animus but also his brazen comments, and those of his advisers, such as Rudy Giuliani, about changing the language simply to get the ban past judges—to trick them, in effect, into thinking that they are constitutional. (“Call it ‘territories’ instead of ‘Muslims,’ ” Trump said in one interview.) The weekend’s tweets will add to that œuvre. Trump is making it difficult for judges who would be inclined to go along with his ban, and who would be grateful for some plausible deniability, to do so without intellectually humiliating themselves.

But perhaps the most troubling phrase in the President’s travel-ban tweets was “watered down.” Trump used it again, in a third tweet: “The Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court - & seek much tougher version!” This presents the executive order as an opening gambit, and a model for future, broader actions. When Trump has spoken about the need to be tougher, he has applied that to scenarios that go beyond immigration, such as the surveillance and even the closing of mosques. What is watered down can quickly be spiked up, if the court affirms the precedent.

The fourth tweet in the Monday-morning series only underscored that concern. “In any event we are EXTREME VETTING people coming into the U.S. in order to help keep our country safe. The courts are slow and political!” Trump wrote. The President has made it clear that he doesn’t much respect the courts, but will he, ultimately, obey them? Where, the President might ask, is the Supreme Court’s power to enforce anything? Trump, after all, was the one in the White House, tweeting in the morning and signing executive orders into the day.

Amy Davidson Sorkin, a staff writer at The New Yorker, is a regular contributor to Comment for the magazine and writes a Web column in which she covers war, sports, and everything in between.

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